Uitspraken

SITTING AT SCHIPHOL JUDICIAL COMPLEX IN BADHOEVEDORP

Criminal Law

Three-Judge Criminal Division

Public Prosecution Service No. 09/748006-19

Date decision rendered: 25 November 2020

The Hague District Court, rendering a decision in criminal proceedings, has delivered the following interlocutory decision in the case of the public prosecutor versus defendant:

Born on [date of birth] in [place of birth],

Address: [address].

The court heard the requests for investigation and responses made by counsel for defendant, the applications and responses made by the Public Prosecution Service and the requests made by counsel for the relatives).

As the court has previously stated, this brings the pre-trial phase in this criminal case to a close. As such, the court is also issuing a ‘final’ ruling in this interlocutory decision on all requests for investigation made by the defence and all applications submitted by the Public Prosecution Service to date, whereby it either grants or rejects them, with the exception of two, on which decision will be postponed.

The court will first recapitulate the progress of the proceedings thus far. Building on the findings in its interlocutory decision of 3 July 2020, the court will then set out how it assessed the requests and the aspects that it took into consideration.

The decisions and the reasons for them will then be addressed.

In those cases where the defence had hitherto been unable to submit additional investigation requests as it had not yet been able to study the case file in sufficient detail and, owing to travel restrictions, had been unable to consult with defendant, the court ruled that the defence was to submit those requests for investigation for which no consultation with defendant was required by 28 September 2020 at the latest and those requests for investigation dependent on consultation with defendant by 2 (later postponed to 3) November 2020.

A subsequent series of hearings commenced on 31 August 2020. The position of the relatives was central at that time. At those hearings, the defence gave a progress report on its preparation. In doing so, it spoke, in particular, of the difficulties that had prevented it from meeting with defendant, who is located in the Russian Federation.

The defence did not submit any investigation requests on 28 September 2020. It did report, however, that it had been able to travel to the Russian Federation in the meantime and had spoken with defendant there. According to the defence, investigation requests that had been drafted prior to that meeting had had to be replaced or overhauled as a result of the meeting. For this reason, among others, no investigation requests were made on 28 September 2020. The defence did announce that requests for investigation would be made at the November 2020 hearings.

The defence submitted the second part of their investigation requests on 3, 4 and 5 November 2020. The defence pointed out that, owing to the size, complexity and difficulty in accessing parts of the case file, studying and digesting it had been laborious. Moreover, there were limitations to the time available to the defence to read the case file and to prepare a defence, and organising travel to defendant had been very time-consuming. The consequences of the coronavirus had also come into play, and as well as tasks unrelated to this case.1

Furthermore, the defence commented on the timing and manner in which it was submitting its requests for investigation, the common objective that most of them served, namely, to verify the reliability of the evidence, the scope and comprehensiveness of requests for investigation and the pre-conditions for their implementation. If the court understands correctly, the topics covered by the requests for investigation may be summed up as follows: the requests for investigation made in June 2020 focus on the investigation conducted by the Public Prosecution Service into alternative scenarios and on the purported incompleteness thereof. The defence contends that, based on the prosecution file, it cannot be ruled out that flight MH17 was downed by a fighter jet or by another BUK missile, for example. Or indeed something else.2

In explaining the requests for investigation which it made in November 2020, the defence stated that defendant contends that flight MH17 was not downed by a BUK missile fired on his instructions or those of his subordinates. This means that additional investigation into the reliability of the available evidence is required in the interests of the defence and/or because it is necessary. The defence divided their requests for investigation into three categories:

(1) was MH17 shot down using a BUK missile?

(2) was the BUK missile fired from a farm field near Pervomaiskyi?

(3) did defendant participate in that act in a manner which renders him criminally liable?

The defence pointed out that, in this case, the Public Prosecution Service had conducted an investigation spanning over six years into the cause of the MH17 crash and into the persons who had played a criminal or other role therein. The defence has repeatedly argued that given the length and size of the case file alone, in addition to the complexity of the case, it should be afforded the opportunity to conduct the investigation needed itself and that it has only just begun to do that work. Given the context of the investigation, in its view, the requests it makes should be assessed leniently.

The Public Prosecution Service gave its response to the requests made by the defence on 12 and 13 November 2020. With the exception of adding NFI report No. 111 to the prosecution file and granting the request to interview co-accused [co-accused 1] as a witness, the Public Prosecution Service concluded that all the requests made on 22 and 23 June 2020 on which decision had been postponed should be rejected, as should all the requests made on 3, 4 and 5 November 2020. In addition, the Public Prosecution Service made a number of applications to have items added to the case file, i.e. video material and transcripts of the interpretation of what was said in that video material, to have a compilation of footage from interviews of witness M58 made, and made a conditional request to submit questions to be put to defendant. The defence said that it would defer to the court on the matter of the transcripts. With regard to adding the video of [co-accused 1] to the case file, the defence took the position that it would only not oppose this if the request to question [co-accused 1] was granted. The defence objected to a compilation of the footage of the interviews of witness M58 being made.

Lastly, counsel for the relatives requested to receive a number of specified documents. It also requested that the relatives be ordered or instructed to disclose information contained in the settlement agreement which they had reached with Malaysia Airlines.

The court has already explained in its previous decisions how it will assess the requests for investigation made and has referred to the case law of the Supreme Court in so doing. Although the necessity criterion is officially applicable and will therefore be applied by the court in making its assessment, in the case of requests that have been made sufficiently expeditiously, the outcome of that assessment will not differ materially from that which would have resulted had the requests been assessed against the interest-of-the-defence criterion. Given the persistent discussion on this point, the court will explain its approach to the investigation requests and the aspects it considers and why it considers them, in general terms below, before going on to rule on those requests.

Fair trial – equality of arms

Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) sets out a number of characteristics which are required for criminal proceedings to be considered fair. At this juncture, the court shall refer to two of them: the right to a trial within a reasonable time and the principle of equality of arms. The principle of equality of arms does not require that the defence be afforded as much time and resources as the Public Prosecution Service to conduct a full investigation or re-investigation into the facts of a case. Indeed, the remit of the defence is completely different to that of the Public Prosecution Service. It is not responsible for establishing a criminal investigation and uncovering what happened, but rather it must represent its client’s interests in the criminal proceedings in which he faces specific charges.

Nor does an accused have a right to take cognisance of all the information gathered as part of an investigation. Nor does this principle imply an unlimited right to question or interview witnesses and/or experts. In other words, the right of an accused to be afforded the opportunity to contest the methods and results of an investigation is not an unconditional or absolute right to verify those methods and results. In instances where the defence appears to have assumed such equivalence in framing and justifying its requests, the court has seen reason to reject those requests. The fact that the Public Prosecution Service has had the opportunity to investigate for more than six years does not change this principle. The defence is mistaken insofar as it asserts the contrary.

The principle of equality of arms requires that the defence be afforded the opportunity to perform its remit properly, i.e. that it be afforded the time and opportunity required to study the case file and to consult privately with its client. In addition, it must be given the opportunity to present exculpatory evidence, but also to challenge the incriminating evidence in the case file and, if there is cause, subject it to closer investigation. It is with respect to this latter task relating to incriminating and exculpatory evidence that the defence may submit requests for investigation. It is in order to meet the abovementioned requirement that a trial be completed within a reasonable time that requests for investigation should be made as early as possible.

As the court stated on 23 March 2020, requests for investigation made prior to the opening of the court proceedings would be assessed against the interests-of-the-defence criterion. The bar for establishing that interest is not high, but it is incumbent on the defence to justify in what way each request is material to conducting a proper defence. Based on that justification, the court then assesses whether the bar has been reached. Requests for investigation made once court proceedings have commenced, however, are assessed against a stricter criterion. The issue at stake then is whether the case file is incomplete without the requested investigative work. Such requests are therefore generally less likely to be eligible for granting. The principle of conducting a trial within a reasonable time plays a prominent role, given that once a case is being heard in court, conducing additional investigation will often cause delay. Thus, at different stages of a trial, the importance of one fair-trial principle (i.e. equality of arms) is weighed against the other fair-trial principle (i.e. trial within a reasonable time), whereby the weight shifts from the first to the second as time progresses.

It is apparent from the court's decision of 3 July 2020 that the court did not require the defence to submit all its requests for investigation during that block of hearings. The court did, however, state that the defence was expected to be sufficiently familiar with the case file by then to give a reasonable estimate of the time it needed to submit the investigation requests that did not require consultation with its client. The defence proposed a timetable and the court largely adopted that timetable in its decision of 3 July 2020. The court ruled that the defence was to submit the investigation requests that did not require consultation with its client, at the latest, during the block of hearings that was to start on 28 September 2020, leaving only requests which required consultation with defendant to be discussed in November 2020. That would then bring the pre-trial phase to an end.

Not only did this timeline afford the defence more time than it had requested in June 2020, but the defence did not indicate at any time thereafter that in retrospect the timeline might be unrealistic. On the contrary, on 28 September 2020, the defence stated that a large number of requests were ready, but wished to review them having consulted with its client, that consultation having taken place shortly before 28 September 2020, as that consultation had shed new light on the requests.

Consultation with defendant

As regards his activities around the time that flight MH17 crashed, defendant has stated that he was in the car at his command post and that the car began to move. He heard a sound reminiscent of a Strela-10, a kind of rustling. The sound he had heard was not from a BUK and the trail was very different too. The sound that he had heard was about 300 metres from him, geographically two kilometres northwest of Marinovka. Defendant jumped out of the car to find out why there had been a launch. He was informed by the command post that an airplane had crashed beyond Donetsk. Information from the radio reconnaissance unit indicated that many bodies had fallen from the sky. Defendant drove directly to Torez and to the village of Grabovo.

As the court understands it, defendant states that he can only speculate as to what happened to flight MH17, he himself does not know. Defendant has not put forward an alternative scenario, neither has he confirmed nor specifically denied the main scenario, with the exception of his alleged personal involvement therein.

Defendant has spoken on the record about a number of intercepted conversations, but not about a number of others. This aspect will be addressed elsewhere in this decision. The court notes that, from the justification provided for most of the requests made in November 2020, it is not apparent in what way consultation with defendant was necessary to frame them, although that should have been the case as specified in the timetable set out in the decision of 3 July 2020. This is all the more regrettable given that it has become apparent that the statement made by defendant in September/October 2020 largely neither differs from nor is more specific than the statement he apparently made to his lawyers in February 2020. The court, therefore, is obliged to conclude that the majority of the requests made on 3 and 4 November 2020 could have been made earlier. In general, the requests in question concern investigation into whether flight MH17 was downed by a BUK missile and, if so, whether it was fired from a farm field near Pervomaiskyi. The degree of relevance to be demonstrated with respect to these requests is also higher than that for requests for investigation regarding defendant’s personal involvement.

Justification of requests

The court would also like to emphasise that whether an individual request is granted or not does not solely depend on whether it was made in good time. Although that is a factor to be considered, a sufficiently relevant request will not be rejected simply because it could have been made earlier. When assessing the requests for investigation, the court will therefore always assess whether the defence has sufficiently justified that additional investigation is relevant enough (from the defence perspective) to qualify as being necessary. However, the later a request is made, the greater the onus on the defence to convince the court of greater relevance and the higher the bar will de facto gradually rise from the interest-of-the-defence criterion to the necessity criterion.

As stated, it is the defence that must convince the court of the relevance of conducting additional investigation. This means that the defence must justify the relevance. If the defence argues that the additional investigative work is needed to complete the investigation already done, it must specify in each instance what information is missing, how that information will help answer unresolved questions and how the requested work can contribute to obtaining that information.

In those instances where the additional investigation is sought not so much to remedy a lack of information, but rather to assess the reliability and credibility of information already obtained, the defence must specify which information is not credible or unreliable and why that is the case. This might, for example, be because defendant himself puts forward a specific scenario other than that set out in the charges, there are specific grounds to doubt the reliability of investigative work done by experts, or a witness statement is implausible, or the witness is unreliable. If such grounds are not specified in the justification provided for the request, the request for investigation will be seen as a fishing expedition and the court will not see any requirement for additional investigation.

In practical terms, although the court concurs with the defence's assertion that it may be in the interest of the defence if (material) aspects of the charges cannot be proven (due, for example, to insufficient reliability), as that could lead to acquittal, the fact remains that, at the least, the position must be taken that a particular item of evidence is defective, and that position must be substantiated by supporting facts and circumstances. Where, in the opinion of the court, such grounds are lacking, the court will reject the defence's request for that reason.

The court underlines that the way in which the allowability of requests for investigation is assessed is different to the way in which the evidence of an accused’s involvement in the charged conduct is assessed at the judgement stage. When it comes to assessing requests for investigation, the question is whether the material currently available was gathered correctly, is sufficiently complete with respect to all key aspects of the charges to be assessed later and, in particular, whether defendant has been able to make whatever contribution he feels is useful in his defence to contest the gathering, availability and tenor of that material. That assessment basically involves checking how complete the investigation conducted is and whether it is possible to remedy any relevant deficiencies in it. That assessment is different to the one used at the judgment stage to establish whether the material available provides sufficient evidence to prove that an accused’s participation in the offences of which he is accused is criminal. At the judgment stage, the focus is on whether the evidentiary value of the material available at that point in time is sufficient to form the basis of any judgment by the court. Ultimately, it is the preserve of the court to evaluate and select evidence. This means that in those instances where the justification provided for the defence's requests largely consists of contesting the evidentiary value of statements or findings, it is not necessarily the case that that justification provides grounds for conducting further investigation. This too can cause the court to reject a defence request.

In a number of instances, conducting the requested additional investigation may be deemed futile from the outset. This is the situation, for example, when it is clear from previous investigation that the same investigative efforts have not yielded results. A new request to do the same work again under the same circumstances will not lead to different results. The aspiration to interview a specific person on a specific subject may also be considered pointless when it is clear that the proposed interviewee is not the appropriate person to answer the questions concerned. This may be because he does not have the necessary knowledge or expertise or has previously explained in detail why he cannot answer certain questions, due to a lack of knowledge or expertise for instance. It is also pointless to interview a witness or expert if he has already provided the answers sought and they, and the way they were obtained, are not disputed, or if the answer sought is apparent from other documents that are not disputed. Finally, there is no use in ordering follow-up investigative work which is contingent upon another investigative step first being conducted, if the request to conduct that first investigative step has been rejected. Since such futility largely lies in the manner in which a request has been justified, the court will, where applicable, reject such requests for insufficient justification.

Weighting factors

When assessing the relevance of a request for investigation, in addition to its timeliness, the court will take account of the potential evidentiary value of the result pursued. This concerns both the subject that the request addresses and the nature of the investigation requested.

Subject of the investigation

The court will make an important distinction between requests for investigation concerning the main scenario as charged and those concerning the so-called alternative scenarios. In this regard, the court refers once again to the difference between the task of the Public Prosecution Service and that of the defence. It is the task of the Public Prosecution Service to uncover the cause of the MH17 crash and in so doing, if necessary, to investigate various possible scenarios. Ultimately, the Public Prosecution Service has to assess whether it considers that there are sufficient grounds to believe that a particular scenario unfolded and to present that chain of events to the court in a specific criminal case. In bringing that case, not only must it conclusively prove the chosen main scenario, but also the alleged involvement of defendant based on admissible evidence. If the Public Prosecution Service fails to prove the scenario charged in the indictment to the court in this way, the court will acquit. The court will also acquit if the actual course of events is not established either. Therefore, there is no need for the defence to prove an alternative scenario and investigating alternative scenarios is thus of limited interest to defendant.

The situation is only different if the alternative scenario in question is not disproved by the evidence supporting the main scenario. Such a scenario is one which may have taken place even if it is assumed that all the incriminating evidence is correct, but that does not lead to a criminal charge. In such a case, there is no use in further investigating the incriminating evidence, but rather additional investigation is required into whether the alternative interpretation of that evidence is correct. In assessing investigation requests regarding alternative scenarios, the court will also assess whether defendant has set out such an alternative scenario and whether it has been justified that the requested investigation is required as a result.

The question of the relevance of the subject can, however, also be considered in assessing requests for investigation related to the main scenario. The court may, for example, assess the justification for the claimed relevance of investigation requests relating to documents in the case file that may considered to be potential indirect evidence (for example, evidence relating to the context or to the alleged supply and removal route) more strictly than for documents that may be considered to be potential direct evidence (for example, the possible weapon, the alleged launch site or the involvement of defendant). After all, it cannot be argued that the two types of evidence are of equal importance.

Nature of the investigation

With regard to the nature of the investigation, the court finds that in general forensic/expert evidence, which is more objective, has greater evidentiary potential than witness statements. As also pointed out by the defence, in a case such as this, in which the crime under investigation not only took place during, but also possibly in the context of a conflict, witness statements must be treated with caution for various reasons. The events often concern incidents that took place quite some time in the past and in circumstances that were sometimes traumatic for the witness. It is also possible that witnesses have become of aware of (social) media reports regarding the cause of the event and/or have spoken extensively with others about what happened and that can influence their memory. Furthermore, it cannot be ruled out that the sympathy a witness may have for one of the belligerent parties may also have coloured his perceptions or statements. It is not uncommon in such cases for there to be a multitude of witness statements that are inconsistent with one another, as is the case in this instance. Aside from the question as to whether it is feasible, there is the question of how useful and therefore relevant it is to subject the witnesses concerned to further questioning after all this time.

For these reasons, when assessing a request to interview a witness, the court will assess the claimed relevance with respect to the subject matter to be covered by the questioning and whether the information sought is missing, but also with respect to whether there are circumstances that give that witness particular weight, for example because he claims to have been near the alleged launch site on 17 July 2014, is making possibly self-incriminating statements or appears to be making statements that run counter to his presumed/alleged political or military sympathies. The court will also take into account whether the witness's statement appears to find a basis in other types of evidence.

Other weighting factors

As regards whether a trial was fair in retrospect, including with respect to the assessment of requests for investigation, other factors (in addition to relevance and justification) are important, such as the interests of third parties, the feasibility of that which was requested, whether there were alternatives to time-consuming investigation, and all this in the interests of an expeditious hearing of the case within a reasonable time for both the accused and victims or relatives.

In the view of the court, this means that each request for investigation must not be viewed and assessed in isolation, but rather that all requests must be viewed in relation to one another, in the context of each other and in relation to the overall case file as it stands. This may mean that only some of a larger group of relevant requests (for example, multiple requests for witnesses or experts to be questioned regarding one topic) may be granted, with only some witnesses or experts being interviewed on that topic, without prejudice to the fairness of a trial. It may also mean, for example, that several investigative steps that could lead to the same result need not all be conducted if the defence’s intended purpose can also be served by granting only one or a selection of such requests.

In cases where the court rejects requests made by the defence below, it is because the necessity for them is not apparent to the court for one of the reasons enumerated above.

First, the court will make some brief comments regarding the language used when referring to anonymous or anonymised witnesses and regarding the various conditional requests made by the defence. The court will then address the requests on which a decision was postponed by interlocutory decision of 3 July 2020 and subsequently the requests for investigation made in November 2020.

Language used in the case of anonymous or anonymised witnesses

The court is called to rule on a large number of requests to interview persons who are not known by their name, and anonymous and anonymised persons. In most cases, the sex of these individuals is unknown. To avoid cumbersome descriptions, the court refers to these individuals, if necessary, in the masculine form. This choice does not give any indication as to the actual sex of the individuals. Indeed, their sex is unknown to the court.

Conditional requests

The defence has made a number of conditional requests, explaining that it was requesting that certain investigative work be done in the event that the court were to decide to rely on a certain document or documents as evidence. Given that the court will only state what evidence it has relied on in adjudicating the charges against defendant when it writes its judgment at the end of the trial, it will only be clear at that point in time whether the condition on which the request is contingent has or has not been met. As a result, a decision will only be taken on conditional requests justified in that way when the final judgment is made. The court shall therefore not discuss these conditional requests in this interlocutory decision.

As already considered above, ultimately the court must, in particular, assess whether the main scenario espoused by the Public Prosecution Service did indeed occur; if this scenario cannot be proven, defendant should be acquitted for that reason alone. Only possible alternative scenarios that cannot be excluded based on the evidence underpinning the main scenario should be explored forthwith. The court finds that such scenarios have not been described by defendant. This leads to the question of whether the possible alternative scenarios that have been pointed out by the defence should nevertheless be investigated. The court recalls its statements above to the effect that the defence does not enjoy an unlimited right to have further investigation conducted, and regarding the court’s responsibility for conducting a trial within a reasonable time. Given the particularly large number of investigation requests made by the defence, the court is therefore obliged to make choices. In this case, this court takes as its starting point that the defence’s need to assess the main scenario critically by means of further investigation must be seen as more relevant and of greater interest to the defence than the investigations into possible alternative scenarios that it has also requested, but which is of considerably less interest to it. In this regard, the court recognises that the main scenario and the alternative scenarios specified by the defence are not hermetically sealed one from another. However, it should be borne in mind that the case file already contains a large amount of material regarding alternative scenarios, including potentially exculpatory material, such as a large number of witness statements about fighter jets that allegedly could be seen. The court will of course consider this material when arriving at its final decisions. In this connection, the court will also order hereunder that witness [witness 1]’s statement be added to the case file and will invite the defence to bring [witness 2], as a person deemed competent by them, to inspect the wreckage, if possible. All things considered, the foregoing leads the court to find that further investigation into the possible alternative scenarios referred to by the defence will not be ordered.

The foregoing leads more specifically to the following decisions on the requests postponed on 3 July 2020.

Warplane scenario – presence of fighter jets 3

The court rejects the request to add the interviews of [witness 1] to the case file. The defence has withdrawn its request for [witness 1] to be interviewed as a witness. The court will address hereunder the defence requests, on which a decision had been postponed, to interview [witness 2] as a witness and the request made in court to designate [witness 2] and an employee of [company 1] as experts.

From the justification provided for the other postponed requests to interview witnesses regarding whether or not they saw fighter jets in the vicinity of flight MH17, regarding radar data, and regarding flight plans, the court deduces that these requests were made with a view to a possible line of defence that the warplane scenario cannot be ruled out, or at least has not been sufficiently investigated or has been dismissed too easily. In light of the above, the court rejects the defence requests, insofar as not withdrawn by them by letter of 11 November 2020, for lack of sufficient, preponderant relevance, not least due to the fact that there is already a great deal of material pertaining to this scenario in the case file. This concerns all postponed requests set out in the Memorandum of oral arguments, part 2 of 9 of 22 and 23 June 2020.

As regards the request for [witness 2] to be interviewed4, the court notes the following. Further to the court’s indicating that [witness 2] might assist the defence as an expert in assessing the reconstruction of the MH17 aircraft in Gilze-Rijen, at the hearing on 13 November 2020, the defence requested that [witness 2] and an employee of the Russian company [company 1] be designated as experts to report on the damage pattern. No information is available regarding [witness 2]’s expertise. The court cannot therefore allow him to be designated as an expert. The court indicated to the defence, given that the defence had not succeeded in identifying an expert who could assist it in assessing the damage pattern on the reconstruction, that in light of the expertise the defence claims that [witness 2] has, it seems logical that it invite him to support it with respect to this matter. If the defence so requests and [witness 2] is willing, the defence may inspect the reconstruction with him and submit its findings to the examining magistrate, who, as previously decided on 3 July 2020,5 at the request of the court may or may then interview him and the designated experts. In its interlocutory decision of 3 July 2020, the court already entrusted the examining magistrate, in this context, with designating an expert from [company 1] who could be questioned, amongst other things, on the extent to which the damage pattern on the MH17 wreckage indicates that a BUK missile was used. In light of the above, the court rejects the request, on which a decision had been postponed, to interview [witness 2] as a witness and the request made in court to designate [witness 2] and an employee of [company 1] as experts, both as they are not required to conduct a proper defence. As stated in its decision of 3 July 2020, it falls to the examining magistrate to organise this part of the investigation and to set deadlines for the parties. The court assumes that the defence will conduct this part of the investigative work in the short term, namely assessing the damage pattern on the reconstruction of the MH17 aircraft with an expert person.

Warplane scenario - lines of investigation 6

The requests under this heading involved requests being granted on 3 July 2020 and the matter being referred to the examining magistrate for additional investigation into how a BUK missile is operated, calculation of the launch area, and the damage pattern.

With regard to the NFI’s investigation into missiles used, the defence requested authorisation to interview the relevant NFI expert ([NFI expert 1]). The court grants the repeated requests in the sense that it instructs that [NFI expert 1] be interviewed, inter alia in light of the principle referred to above that the defence has a particular interest in investigating the validity of the main scenario. Later in this decision further information will be given on the way in which and the topics on which this expert may be questioned.

The postponed requests also concerned witness [witness 3]7 (head of air weapons, Ukraine) who had provided a statement on BUK missiles in use by the Ukrainian army in 2014 and explained how these BUK missiles could be identified, reporting officer Primo-17-2308 regarding operation of a BUK-TELAR as he had experienced it during his investigative work, witness [witness 4]9 (Federal Agent, AFP) who had produced an analysis of the BUK-TELAR identification system, including the identification of targets, and the author (name unknown)10 of the manual containing the technical description of 9M38M1-series missiles. The defence requested that reporting officer Primo-17-311 and [witness 5] be interviewed regarding the air missiles and fighter jets available to the Ukrainian Air Force.11

The court rejects the requests concerning operation of a BUK missile, due to insufficient justification. The additional reasons provided by the defence in its letter of 11 November 2020 do not change matters, given that the defence can conduct investigation operation of a BUK missile further by having the examining magistrate question witnesses and/or experts on the matter, interview of whom has already been granted or is granted by this decision. The other requests regarding possible alternative scenarios are also rejected due to insufficient relevance, with reference to the considerations set out above.

Satellite images 12

The request to interview [witness 6] regarding the satellite images from the United States is once again postponed by the court pending the outcome of the request for legal assistance sent by the examining magistrate to the United States requesting that the satellite images of a (BUK) missile launch on 17 July 2014 be provided.

Recovery of wreckage 13

Four witnesses have now been interviewed regarding the recovery of certain pieces of wreckage. The defence provided additional explanation on this subject in its letter of 11 November 2020, indicating that it still wished to interview witnesses regarding the situation at the crash site and the way in which material that was eventually transferred to the Netherlands was collected. In this context, the defence had requested that an OSCE employee ([witness 7]) be interviewed on the matter. In the aforementioned letter, the defence stated that it was currently unable to provide the name of a witness who could make a statement on this topic and asked that decision on its request to interview the OSCE employee be postponed, pending the outcome of additional endeavours by it to identify a witness. The court rejects that request due to insufficient justification.

In assessing the requests made in court in November 2020, the court followed the classification used by the defence, which is based on the three main questions flowing from the indictment.

Was a BUK missile used?

With regard to its requests regarding whether flight MH17 was downed by a BUK missile, the defence has stated that it considers it important, first of all, to ascertain what experts have actually determined in this respect and, as the court understands it, what significance should be attributed to the conclusions that the experts have drawn based on their findings in this context with respect to the above-mentioned question.

In this connection, the defence considers it highly relevant to determine exactly what information was available to the expert during his work, which material was, and which material was not, made available to the expert, exactly which question(s) he was tasked with answering, and how those questions came about, whether or not the expert was influenced in forming his opinion by information from other sources or reports that he or colleagues had previously written (a phenomenon referred to by the defence as contamination), whether scientifically recognised methods of investigation were used, and whether the person conducting the research was or was not an expert. In order to investigate this, the defence has stated that it wishes to question the individuals who produced a number of specified reports regarding inter alia the methodology used. The defence also stipulated a number of questions with respect to each report, aimed at clarifying investigation results, or regarding the probability theory applied and how selected hypotheses were arrived at.

More specifically, as regards whether flight MH17 was shot down using a BUK missile, the defence has requested additional investigation into a number of aspects. These requests comprise:

Interviewing NFI reporting officers

Re. 1) A number of reasons have been provided to justify the request to interview the four reporting officers. Some are of a general nature, while others relate to specific reports.

With regard to the defence’s general desire to question the reporting officers on their training, experience and specific expertise, the court finds that the defence has not explained the basis for doubting the examining magistrate’s assessment of the expertise of the reporting officers designated by the examining magistrate as experts. The requests are therefore insufficiently founded in this respect and are rejected by the court.

The defence also wishes to question the experts about the scope of their investigations, who determined the scope and how, why similarities were only sought with a BUK missile and not with other types of weapons, what information the experts had at the start of their investigation, and to what extent they were hampered by possible bias as a result of their involvement in several successive investigations. The court is of the opinion, however, that the reports adequately disclose the manner in which they came about. This holds true as regards the factual information provided in advance, any forensic intake discussions that took place, the limitations inherent in the questions to be answered by their work, and the involvement of reporting officers in preparing successive reports. The question as to whether they were hampered by possible bias is not one which can be usefully put to the experts concerned. The court is therefore of the opinion that the information sought that makes interviewing the experts on the above points relevant has been insufficiently specified. If the defence is of the opinion that the circumstances in which the reports were produced had a negative impact on the reliability or credibility of the reporting officers or of their conclusions, the defence may address this in oral arguments.

In addition, the defence has stated that it wishes to question the reporting officers regarding the methodology used. The court finds that the reports describe the methodology used. The court therefore finds no justification to grant the request to interview the experts.

Finally, the defence has framed specific questions regarding certain reports. In summary, these relate to what the defence considers unclear presentation in the reports of which findings led to a particular conclusion and for what reason, and what the precise conclusion is. Irrespective of whether or not this claimed lack of clarity could be resolved in full or in part by a more thorough reading of the reports, the court considers that it is particularly important that all parties completely understand the forensic findings and conclusions in these forensic reports which are key to whether the case being brought will be proven or not. The court therefore sees cause to instruct that expert [NFI expert 1] be questioned by or via the examining magistrate. The questions should be limited to matters which he described in the IDFO [interdisciplinary forensic investigation] summarising report which he wrote and on which he can speak based on his expertise and knowledge, and then only regarding the key points he describes in the IDFO report regarding Primo reports 8686, 9330, 8688, 2913, 3956, 4162, 8882, 9427, 9126, 6556, 8139 and NFI report No. 111 (yet to be added to the file). These are the reports about which the defence specified it had questions and why, in June and November 2020. Other than questioning [NFI expert 1] in this way, the court sees no cause to interview the other three NFI experts. That request is therefore rejected. The court leaves the matter of how expert [NFI expert 1] is to be questioned to the examining magistrate. The court emphasises that this might begin by submitting written questions to the expert, followed, if necessary, by one or more written rounds, before the examining magistrate decides whether questioning the expert in an interview format would add value.

In light of what has been stated above regarding the absence of relevance/necessity of additional investigation into how the reports came into being, the court also rejects the request to instruct the examining magistrate to seek the application forms from the NFI for all the NFI reports referred to by the defence and to have them added to the case file. The court, however, does instruct the Public Prosecution Service to add NFI report No. 111 (now Primo-15185) to the case file.

Report Primo-7626

Re. 2) With respect to interviewing the Australian Crime Scene Investigator ([witness 8]), the questions which the defence wishes to ask the witness and which are stated in the reasons for the request have all been answered in the report produced by this Australian official. The court therefore rejects this request as it is insufficiently founded.

Securing the cockpit frame material

Re. 3) With respect to interviewing the two Dutch reporting officers who described securing the cockpit frame ([witness 9] and [witness 10]), the court finds that the questions that the defence wishes to ask the reporting officers have already been answered in the official report, in conjunction with the associated photographs in the Media file, and with respect to the question as to whether their conclusions are endorsed by others, that his question cannot usefully be put to these reporting officers. The defence is free to include this question when the experts are being interviewed regarding the damage pattern and calculation of the launch site, as granted in the interlocutory decision of 3 July 2020. Given that the reasoning underpinning the request does not reveal any interest to the defence, the request is rejected.

Scope of questioning of NLR/RMA experts

Re. 4) With respect to interviewing experts from the NLR ([NLR expert 1]) and the RMA ([RMA expert 1]/[RMA expert 2]/[RMA expert 3]), in the event that this does not already fall within the scope of the interview of these experts granted, the court notes that, its decision of 3 July 2020, it ruled that both [NLR expert 1] (NLR) and [RMA expert 1] and/or [RMA expert 2] and/or [RMA expert 3] (RMA), as well as an expert from [company 1] to be designated by the examining magistrate, could be questioned regarding the extent to which the damage pattern observed on the pieces of wreckage from the MH17 aircraft indicated that a BUK missile had been used. The court framed the subject matter broadly at the time. The questions that the defence stated on 3 November 2020 that it wished to put to the experts fall within the scope of the request granted on 3 July 2020, such that there is no need to broaden the investigation remit entrusted to the examining magistrate. This repeat request is therefore rejected for lack of additional interest to the defence.

Author(s) of TNO reports

Re. 5) The court notes that this request has been couched in conditional terms. The court is only asked to make a decision in the event that the court wishes to use these reports as evidence or, in any case, does not wish to exclude them from the evidence. As the court has previously ruled with respect to a similar request, it is highly unusual to express a view in advance, and especially at the pre-trial stage, on the use of documents as evidence or the evidentiary value of documents. As far as the court is concerned, this also applies to these reports. As previously explained, a decision on this request would normally be deferred to the point in time when the court retires to deliberate on its final judgment in this case. However, given that the court finds that interviewing the author(s) of the reports, which figure as Appendices 7 and 8 to the DSB report (Primo-5604), on their content is as relevant as interviewing the aforementioned NLR, RMA and [company 1] experts, as granted on 3 July 2020, the court is ruling on its own initiative that the author(s) of these TNO reports be interviewed by the examining magistrate. The court is aware of possible (legal) restrictions that could come into play in executing this remit. However, in the view of the court, it is far from certain at this time that Article 69 of the Dutch Safety Board Act bars the author(s) of these reports from being designated and interviewed as expert(s), that is to say as external expert(s) with respect to the Dutch Safety Board. If the agreement between the TNO and the DSB places the author within the scope of this article, the author may raise this with the examining magistrate, who may then take the decisions on the matter that appear advisable to her. In response to the specific request from the defence to the Public Prosecution Service on the matter, the court notes that it will leave to the examining magistrate the manner in which the names of the author(s) of these reports are sought.

Request for RMA-NLR meeting minutes and to add them to the case file

Re. 6) The court finds that the relevance of seeking the possible minutes of a meeting on 8 December 2016 and adding them to the case file has not been sufficiently justified, given that the defence may ask questions regarding how the reports came about during the previously granted interview of the RMA and NLR experts. This request is therefore rejected.

Provision of Primo-07628

Re. 7) Given that this concerns an apparent typographical error in the case file, and the document requested appears in the case file as Primo-07626, the request, if maintained, is rejected due to lack of interest to the defence.

List of pieces of wreckage

Re. 8) The court notes that this request is addressed to the Public Prosecution Service and therefore does not require a decision by the court.

Was a BUK missile launched near Pervomaiskyi?

The defence prefaced its requests regarding whether a BUK missile was fired from a farm field near Pervomaiskyi with eight reasons why, in the eyes of the defence, additional investigation into the supply and removal route and the launch site is required. These reasons respectively are that in July 2014 military equipment was transported within the DPR on many occasions; that the meaning of certain facts and circumstances must be interpreted in the context of a war; that many witnesses probably lack specialist knowledge; that a lot of information was made public by the JIT and other media; that witnesses interviewed may have a direct or indirect interest in providing the content of their statements, which has implications for their evidentiary value; that the fact that most of the witnesses who have stated that they saw a BUK are anonymous severely limits the scope for verifying the reliability of their statements; and, finally, that not all the information available was taken into account when conclusions were drawn.

The defence has framed a great many investigation requests regarding whether a BUK missile was launched near Pervomaiskyi. It goes without saying that the answer to this question is highly material to this case. In short, these requests relate to witnesses, images and findings regarding the alleged launch site and the alleged supply and removal route of the alleged BUK-TELAR. It has already been emphasised above that, inter alia in light of the provisions of Article 6 ECHR, the defence is entitled to have relevant additional investigation conducted. However, just as in any other Dutch criminal case, this right is not unconditional. In a large-scale investigation such as this, it therefore does not have an unrestricted right to subject almost all witness statements and findings of evidentiary relevance to investigation. Indeed, the self-same Article 6 of the ECHR requires the court to ensure that the trial take place within a reasonable time. The court is thus obliged to make choices and to place emphasis and, aside from the relevance argued by the defence in its justifications, is led in making those choices by the following considerations.

As previously stated, in general, the court considers that forensic evidence and findings have greater relevance than witness statements. In addition, requests for investigation relating to witnesses and findings concerning the alleged launch site are more likely to be eligible for granting than those relating to the alleged BUK-TELAR supply and removal route. As to whether a BUK missile was fired from a farm field near Pervomaiskyi, the former category of findings could constitute evidence that is more direct than the (possibly only supporting) latter two categories of findings. Furthermore, with regard to whether the defendant may have been personally involved, the emphasis lies elsewhere, the court understands that the Public Prosecution Service believes that his personal involvement may be inferred in particular from intercepted and telephone data largely relating to the period in which the BUK-TELAR was allegedly supplied. Notwithstanding the foregoing, the relevance of each individual request for investigation must be apparent, inter alia from the justification provided.

Applying these various considerations to the investigation requests in each category leads the court to the following assessment.

Requests regarding the alleged launch site

In line with the foregoing and with the granting of witnesses X48 and M58 on 3 July 2020, the court grants the request to interview witness S40,22 given that this witness has made statements regarding observations made in the vicinity of the alleged launch site. The fact that the answers to certain questions that the defence would like to ask may have to remain outside the case file for security reasons or may have already been excluded from the case file, as the Public Prosecution Service argues, is not an unequivocal reason for rejecting the request. There is also no or insufficient reason to assume that witness S39 and the (unnamed) person about whom he made a statement23 could testify regarding the launch site. The request to interview these witnesses is therefore rejected for lack of relevance.

The court also grants the request to interview [witness 11].24 The court notes that defendant stated that he and his subordinates did not have and did not see a BUK on or around 17 July 2014 in the Pervomaiskyi area. The JIT reported (Primo-02389, p. 38) that, on the basis of telephone data, it was plausible that, as also stated by witness S21, [witness 11] was present near the checkpoint at Pervomaiskyi from 15:14 hours on 17 July 2014. In light of the foregoing, the court appreciates the relevance of interviewing [witness 11] regarding the questions raised by the defence at paragraph 480. The court notes that the request to interview this witness has been rejected elsewhere in this decision for other reasons. For that reason, [witness 11] will only be questioned regarding what he knows about and observed in the vicinity of the checkpoint.

Furthermore, the defence has requested authorisation to interview the members of the Russian Federation 53rd AAM Brigade25 because the Public Prosecution Service assumes that members of that brigade escorted the BUK to the alleged launch site and that those who fired the alleged BUK were members of that brigade. The defence wishes to assess whether members of the 53rd AAM Brigade did indeed transport and fire a BUK missile and, if so, from where and why. In this context, the defence referred to the names of [witness 12], [witness 13], [witness 14], [witness 15] and [witness 16] who, according to the JIT, were members of that brigade in July 2014.

Unlike the Public Prosecution Service, the court is of the opinion that this request should be granted in part. The importance of investigating whether it is correct that members of the 53rd AAM Brigade were involved in transporting and firing a BUK missile that struck flight MH17 and, if so, under what circumstances, is evident. At the current stage of the investigation, the most obvious person to whom such questions could be put is Colonel [witness 12], who is said to have been in charge of the 53rd AAM Brigade at the time and overseen the brigade’s operations in 2014. In the opinion of the court, the fact, underlined by the Public Prosecutor, that the Russian Federation has previously refused to provide information regarding this brigade in response to a request for mutual legal assistance does not suffice to conclude that this witness cannot be interviewed, or cannot be interviewed within an acceptable period of time. This response is not recent and, in this instance, does not relate to a request made on behalf of the Public Prosecution Service, but rather a request made on behalf of the defendant, a national of the Russian Federation.

In the court's opinion, there is insufficient interest to the defence in questioning the other persons in this regard, that is to say aside from [witness 12], as requested. This also applies to the request to interview all members of the 53rd AAM Brigade, a request which moreover is not specific enough, and the person who stated that he had been in contact with some of these persons via social media, namely S28.26 These requests are therefore rejected.

The defence requested that ten persons (referred to by the defence using their call signs) who were allegedly present with defendant at around 16:20 hours on 17 July 2014, in order to confirm that the defendant did not see or hear an explosion, nor the firing of a BUK missile. Apart from the fact that the court did not hear the defendant himself state that these persons were with him at the specified time, the court finds that it is not clear from the justification provided for this request how it might be relevant that defendant allegedly did not observe a BUK missile at the time of the MH17 crash. Indeed, it appears from the file that the investigation team seemingly also assumed that defendant was not present at the alleged launch site at the time that an alleged a BUK missile was fired. The request is therefore rejected.

Witness G247327 was at the launch site identified by the Public Prosecution Service shortly after flight MH17 crashed and took photographs and recorded video there. The witness can therefore provide a first-hand account of the state of the field and possibly substantiate this with the aforementioned photographic and video material. Like the defence, the court sees the relevance of interviewing this witness regarding what he observed.

The owner or user of the farm field at Pervomaiskyi28 that the Public Prosecution Service refers to as the launch site can also provide a first-hand account of the condition of the field prior to and after the crash of flight MH17. This witness can in particular testify as to whether there had been a fire there, whether the field was re-ploughed and, if so, when and why. Like the defence, the court sees the relevance of interviewing this witness regarding what he observed and his knowledge. The request is, thus, granted. However, the court rejects the request that those living in the vicinity of the farm field at Pervomaiskyi29 be interviewed, as this request is far too generic in light of the (remote) location of the field and the scattered location of homes in the area.

In addition, the defence requested that the official record of the interview of the journalist who took soil samples in Ukraine ([witness 17], Primo-03456) 30 be added to the case file. The court understands that the defence has made this request in order to ascertain the date on which this journalist took the soil samples. However, the time period in which the date falls is already clear from the Algemeen Dagblad newspaper article of 10 January 2015, which is already in the case file (reference in Primo-02664). The request is therefore moot and rejected for that reason. The defence requests that an expert ([NFI expert 5]) be interviewed regarding the possible presence of products of combustion in the soil samples.31 The court finds, however, that the expert's report (Primo-7308) indicates that he studied the elemental composition of the soil samples, but not possible trace chemicals present in the soil samples. In view of this, the expert will be unable to answer questions regarding indicia of combustion products in the soil samples, as this concerns trace chemicals. The request is therefore moot.

The defence also requested that two NFI experts ([NFI expert 1] and [NFI expert 2]) be interviewed regarding soil samples.32 The questions raised by the defence in support of this request are, in the opinion of the court, already adequately answered in the reports by these experts (Primo-9435 and Primo-8139). Further questioning is therefore unnecessary and moot. The court is therefore rejecting the request.

The court orders the Public Prosecution Service to enter the NFI report entitled ‘Explosives investigation following the crash of flight MH17 near Hrabove, Ukraine on 17 July 2014’ with application numbers 140, 131 and 153, dated 5 December 2016, to the case file.33 This is a report referred to in other NFI reports. The court finds it relevant that the defence be able to assess the content of this document itself.

As regards the defence’s request that data from the radar tracking devices34 be requested, insofar as this concerns so-called AWACS aircraft, the court rejected the request in its interlocutory decision of 3 July 2020. Insofar as it relates to the systems referred to by witness S26, the court notes that it can be inferred from his statement that he is referring to fighter jets, which Ukraine has repeatedly stated did not fly on 17 July 2014. In light of this, no further information is to be expected from Ukraine. Insofar as the request pertains to other (military and civil) radar systems, Ukraine has also repeatedly stated that it does not have more information beyond that already provided to the JIT. The request is therefore rejected as moot. Incidentally, the court notes that, further to a request for mutual legal assistance of a more general nature, the Russian Federation has not supplied such information either. In light of the foregoing, interviewing S2635 is considered moot and rejected for that reason. What is more, the request is not specific enough and can therefore be seen as a fishing expedition.

Requests regarding visual material and the smoke trail

The defence requested that the person who took the photograph of the smoke trail from Torez ([witness 18]) be interviewed.36 The court finds that the case file provides sufficient evidence of how the camera and SD card, and thus the original photographic material, came into the possession of the JIT. In addition, the authenticity of the photograph has already been verified in other ways. Neither is the authenticity of the photograph disputed by the defence. The defence also requested that witness S13 and the person who took the smoke trail photographs from Snizhne be interviewed.37 The court finds that the answer to the questions that the defence requests to put to witness S13, namely whether he has information regarding the identity of the person who took the aforementioned photographs and the news site from which the witness obtained the photograph, is already sufficiently clear from the case file. The witness has previously said that he has no information on the identity of the photographer, and the website is mentioned in the correspondence attached to witness S13’s statement (Appendix 3 to Primo-07871A). What is more, it can be inferred from the case file that it proved impossible to establish who had taken the original photograph. For these reasons, the requests are rejected as insufficiently founded.

The defence also requested that a number of witnesses be interviewed to assess the reliability of their statements.

In light of the foregoing, the court is of the opinion that the above-mentioned requests have been insufficiently justified and rejects them for that reason.

Requests regarding the alleged supply and removal route

Many of the investigation requests made in this connection are to interview witnesses who have made statements regarding the alleged BUK-TELAR supply route. It follows from the foregoing that these requests are more eligible to be granted if they concern the alleged personal involvement of the defendant than if they merely concern determining the precise route. If the court understands correctly, the Public Prosecution Service intends to prove that the defendant was involved personally, not only predominantly based on the content of a number of intercepted conversations, but probably also based on a car journey made by the defendant around noon on 17 July 2014 to the immediate vicinity of the Furshet supermarket in Snizhne, which the Public Prosecution Service claims is also revealed by those conversations. According to the Public Prosecution Service, the defendant met with [co-accused 2], who had just arrived there with the BUK-TELAR. The court understands from the statements made by the defendant, to the effect that in the relevant conversation the word ‘toy’ does not refer to a BUK-TELAR and that on 17 July 2014 (and the days around that date) he did not see a BUK-TELAR in the area he visited, that he disputes this. All of this makes the question of whether a BUK-TELAR (with an accompanying convoy allegedly including [co-accused 2]) was in the immediate vicinity of the Furshet supermarket in Snizhne at around noon on 17 July 2014 relevant to the alleged personal involvement of defendant.

Given that witnesses S20, V07 and V2242 have provided accounts of potentially relevant sightings in the immediate vicinity of the Furshet supermarket, the court grants the justified requests to interview those witnesses. Although witness V54, also requested, has also made a statement concerning the supermarket in question, the examining magistrate has now specifically ruled that that part of witness V54's statement cannot be deemed reliable. With regard to witness V49, when interviewed by the examining magistrate, he did not maintain his initial statement regarding what he had allegedly seen at the Furshet and the examining magistrate has deemed that the testimony cannot be deemed reliable. The court therefore finds interviewing this witness again to be a pointless exercise. This also applies to witness V45, whose statements on the topic consist only of hearsay.

In this regard it could also be relevant whether satellite images from shortly after 17 July 2014 show more traces of a tracked vehicle near the Furshet than satellite images from shortly before 17 July 2014 and whether these could have been caused by a BUK-TELAR. In this connection, the defence has requested that the image analyst (Primo 17-476)43 be interviewed as a witness. The court notes that the visual material used by that reporting officer is in the case file. The questions raised by the defence have, in the opinion of the court, already been answered adequately in the official report produced by the reporting officer (Primo-02733). For that reason, in light of the relative evidentiary value of Primo 17-476’s official report, it is unclear why such an interview might be relevant, given that it would only concern describing images that are in the case file and are therefore accessible to all parties. As the defence’s interest in interviewing Primo 17-476 is insufficiently apparent from the reasons given, the request is rejected.

In addition to the above-mentioned witnesses who gave accounts of a BUK-TELAR in the immediate vicinity of the Furshet supermarket, the defence also requested to interview a large number of witnesses who have stated, or could possibly speak on whether or not, there was a BUK-TELAR on other parts of the alleged supply route on 17 July 2014. These witnesses are:

The defence has also requested that witnesses S0752 and S2153 be interviewed. In order to assess the reliability of the latter, the defence also requests that a number of persons named in the statement of that witness be interviewed. These are [witness 23]54, name unknown [witness 24], [witness 25] and [witness 26]55, NN 1, NN 2 and [witness 26],56 [witness 11]57 and [witness 28], [witness 29], [witness 30], [witness 31]58 and [co-accused 2].59 The court grants the request to interview witness S21, given that this witness states that he was on the separatists’ side and was involved in transporting a suspected BUK-TELAR from Snizhne on the evening of 17 July 2014. Although this witness makes no statement concerning the defendant and the statement focuses in particular on the alleged removal route, this witness’s statement might be considered to incriminate the defendant (indirectly). The court therefore sees sufficient interest to the defence and relevance in this witness being interviewed. The court previously rejected an application made by the Public Prosecution Service to interview this witness. This was related to the fact that the court had to apply a different criterion when assessing that application, namely whether interviewing that witness was necessary.

The interest to the defence identified above with respect to interviewing S21 does not apply to interviewing witness S07 and the other persons requested to be interviewed in this regard (of whom there are no interviews in the case file). Those requests are rejected.

The defence requests that co-accused [co-accused 2]60 also be interviewed as a witness and inter alia be asked if he ordered S21 to transport a BUK missile and, if so, what orders were given. It is undeniable that interviewing co-accused [co-accused 2] is of interest to the defence. However, the Public Prosecution Service has taken the position that the request to interview [co-accused 2] should be rejected, because there is no reasonable prospect of him being interviewed within an acceptable period of time. The court finds that it proved impossible to make contact with [co-accused 2] before March 2020 to inform him of these criminal proceedings and to interview him, and that, to the knowledge of the court, no place of residence for him is known. In this instance, it falls to the examining magistrate to ascertain whether there are now any leads regarding how [co-accused 2] might be contacted. If the examining magistrate concludes that it is unlikely that [co-accused 2] can be interviewed within an acceptable period of time, the examining magistrate will write an official report of findings to that effect. The request is thus granted. Although requests to interview [co-accused 2] have been made in several places and for several reasons, and the request to interview him above is rejected due to insufficient grounds, the court will not place restrictions on the subject matter of this witness interview given its relevance.

The defence has also requested the interview of two AP journalists (names unknown) and [witness 32],61 from whose statements it can be deduced that tanks were allegedly in the vicinity of Snizhne on 17 July 2014. The court and the Public Prosecution Service are of the opinion that interviewing these witnesses is of insufficient relevance, since it is not disputed that the defendant was dealing with tanks as part of his duties on 17 July 2014. These requests are therefore rejected.

Regarding the request to interview [witness 33], [witness 34 and [witness 35],62 who, according to the Public Prosecution Service, were purportedly involved in supplying the alleged BUK-TELAR, the defence has not reported on any circumstances that counter the very strong indications in the case file that these persons have died. The court therefore assumes that these persons are deceased and therefore rejects the requests.

The request to interview witness [witness 36] and witnesses S30 and S3163 is also rejected. The court agrees with the Public Prosecution Service that this is not required to conduct a proper defence, given that [witness 36] has been extensively questioned and has in no way made any statement that incriminates the defendant. For the same reason, interviewing witnesses S30 and S31 (S30 allegedly stated that S31 allegedly told him that [witness 36] had told S31 that he, [witness 36], had shot down flight MH17) is also not required to conduct a proper defence. This is also true of the requested interviews of [witness 37] and [witness 38]).64 Those requests are also rejected.

In addition, the defence requested that three witnesses be interviewed who made statements regarding the alleged removal route, or at any rate the period shortly after the crash of flight MH17. These witnesses are:

The defence also requested that citizen journalist [witness 39] be interviewed.68 The court understands that the defence wishes to interview this witness in order to assess the (evidentiary) value of the statements of other persons contained in the case file. The court finds that an extensive interview of this witness is already present in the case file and that it has insufficiently explained which information is missing. The defence may present oral arguments regarding the extent to which the statement of this witness raises doubts about the statement of others. However, it falls solely to the court to evaluate the evidence, for this reason alone the request must be rejected.

Finally, the court orders the Public Prosecution Service to add official reports Primo-00861, Primo-03772, Primo-06315 and Primo-03803 to the case file.69 These are documents quoted and referred to in the case file. The court finds it relevant that the defence be able to assess the content of these documents. The request is therefore granted.

Requests for images of the alleged supply and removal route

The defence has also made a large number of requests related to images in the case file that, according to the Public Prosecution Service, were produced on 17 and 18 July 2014 respectively, on the alleged BUK-TELAR supply and removal route.70 In this regard, the court recalls that it has already referred the matter to the examining magistrate for investigation into, in brief, image manipulation and into the correct dating of a large proportion of this visual material. In addition, the court is deciding today to conduct additional investigation into the possible manipulation of the photograph referred to below containing a possibly inexplicable shadow. Furthermore, the court refers to its findings above as regards the relative interest of the alleged supply and removal route. Against this background, the court has assessed the justifications given for conducting the requested investigations and, as set out below, finds the interest to the defence to be of insufficient weight in almost all cases.

The requests concerned are the following:

In short, the requests by the defence to interview witnesses, including the makers of the material, the reporting officers who received the material and third parties, including third parties who investigated where recordings had been made, but did so independently, i.e. not as part of the criminal investigation, are aimed at verifying the alleged date and authenticity of the recordings. Given that the video footage does not show the alleged launch site, the investigation that has already been ordered by the court into the date and authenticity of the recordings and the examination of the images conducted during the investigation (including by the NFI), the court is of the view that the investigation requested in this regard is insufficiently relevant. These requests are therefore rejected.

Regarding the request by the defence to interview the reporting officer of Primo-13488 ([NFI expert 6])83 regarding an unusual shadow on a photograph, the court, like the defence, appreciates the relevance of investigating whether this photograph may have been manipulated. Rather than interviewing the drafter of the aforementioned NFI report ([NFI expert 6]), the court finds that the most logical course of action is to investigate the actual source, namely have an expert carry out technical (digital) analysis into possible manipulation of the relevant photograph. The court will refer the case to the examining magistrate to have this work carried out. The court notes that this investigative work could be carried out by the expert who is assigned to look into the possible manipulation of video footage of a BUK-TELAR in Snizhne, as approved above.

Moreover, the court finds that the source of information mentioned by reporting officer Primo 17-18184 has already been included in the case file (Primo-02733). The request to interview this witness therefore lacks a factual basis in this respect. Moreover, although this reporting officer assembled the file, he did so as instructed by and under the aegis of the Public Prosecution Service. The questions raised by the defence should therefore be put to the Public Prosecution Service and not to this reporting officer. Questioning him is therefore pointless and the related request is rejected.

Furthermore, the court finds that questions which the defence wishes to put to the KNMI reporting officer ([KNMI reporting officer 1])85 are not based on contesting of the content of this officer’s report, but rather are intended to clarify the report. Such a general justification, with no specific challenge underlying it, is not sufficient to grant the request. It is therefore rejected.

The court also notes that the defence questions regarding whether footage from a Chinese satellite might be available have already been adequately answered in a report by the European Space Agency (ESA) (Primo-09908) which is in the case file. With regard to the questions raised about the SEVERI instrument/heat scan images, the Public Prosecution Service has indicated where the answers can be found in the case file (Primo-09909). Accordingly, the request to interview Primo 17-10586 is rejected for lack of factual basis.

The defence has also asked to question four researchers from the European Space Agency (ESA) regarding a report they drafted.87 The court understands that the reason the defence wishes to interview these witnesses is to be able to assess the reliability of the report (Primo-09910) with a view to it being used as evidence. Its content, however, is not in dispute. For that reason, the request is rejected as insufficiently founded.

In addition, the defence has asked to interview ESA researchers ([ESA researcher 1], [ESA researcher 2] and [ESA researcher 3]) about the reconstructed supply route.88 With regard to the request for the original (satellite) photographs, the Public Prosecution Service has indicated that the photographs in the case file are of better quality than the material referred to by the defence. The Public Prosecution Service has also indicated where it can be found. By clicking through the ESA report, the court did in fact find files of better quality for several photographs, but this was not the case, however, for the photograph shown by the defence. The court finds that the ESA apparently bases its findings on a satellite photograph, on which one can zoom in. The ESA included prints of various stages of zooming-in in the report. The blurred photograph shown in court is a print of an image obtained after zooming far in on the satellite photograph. In order to be able to assess the associated observations made by the ESA, this satellite photograph must be placed in the case file. The court has, however, been unable to find the original satellite photograph, which is probably in .TIF format. Generally, the court finds that visual material in .TIF format is very difficult to locate in (the Media file of) the case file. This seems to be because not all items of visual material are ‘linked’. Some visual material can be found by using the relevant Primo number, but there is no such labelling for other visual material. The court will therefore order the Public Prosecution Service to compile a list of all satellite images in .TIF format in the case file (and to do so separately from the existing Media file, perhaps as an A4 document in Word format), attributing logical names to those images (for example, farm field 16 July 2014, farm field 21 July 2014) and linking the names to the relevant file. If the satellite image underlying the ESA report is already in the case file as a .TIF file, it should be entered in the aforementioned list. If the photograph is not yet in the case file, the court instructs the Public Prosecution Service to add it to the case file and to the list. Aside from the above, the court does not consider additional questioning of the abovementioned ESA experts to be relevant. The court finds that the experts stated clearly in the report what they had observed on the photographs. The defence will be able to verify this for itself from the satellite photographs. The question as to whether these observations, which are discussed in the 'interim conclusion', provide sufficient support for the final conclusion is a matter on which the experts expressed their views in the report. The defence may give its view on this matter during oral arguments. The request is therefore rejected.

The defence also requested that three NFI experts [NFI expert 7], [NFI expert 8] and [NFI expert 6]) and two military advisers ([witness 45] and [witness 46]) be questioned.89 With respect to these experts’ and military advisers’ experience with TELARs, the court notes that the basis for each person’s experience is described in the NFI report (Primo-06616). As no aspect in particular is disputed, the request to interview the aforementioned persons lacks sufficient justification. With regard to questioning the NFI experts on matters of substance, the court does not see how or what the experts might have concluded, if they had not encountered the impediments they described. An interview on this matter is therefore pointless. For the above reasons, the request to interview these experts and these military advisers is rejected.

The defence wishes to question the reporting officers ([NFI expert 6], [NFI expert 9] and [NFI expert 9] regarding NFI report Primo-12574.90 However, the report indicates that there was only one person, namely [NFI expert 6]. The court notes that the questions raised by the defence are not aimed at disputing the content of the report, but rather are aimed at clarifying the report. Such a general justification, with no specific challenge underlying it, is not sufficient to grant the request, which is therefore rejected. Given that the request to interview these reporting officers has been rejected, adding the requested 'starting information', in the interests of an effective interview, serves no purpose, and this request is rejected also.

Aside from the fact that the chronology is not relevant for the content or interpretation of what Primo-13488 conveys, in light of the explanation given by the Public Prosecution Service regarding the chronology, the court fails to see the relevance of adding the NFI reports dated 13 June 2019, the revision dated 23 September 2019 and the supplement dated 17 October 2019.91 This request is therefore rejected.

As regards the request to add application numbers 210, 211 and 212, and the remits issued pursuant to them, to NFI reports Primo-13488 and Primo-12574,92 the court notes that the request to add the NFI reports to which these application numbers relate was rejected for lack of specific relevance. The court finds, therefore, that the request to add the corresponding application numbers and the remits issued further to them, serves no purpose and rejects it also.

Requests regarding the interpretation of telephone calls

The defence has requested that several persons who could explain how certain terms that come up in intercepted conversations are to be understood be interviewed as witnesses. These requests were prompted by defendant’s explanation that when the word ‘BUK’ is used, it does not denote an actual BUK-TELAR. Rather that the term is used to mislead the enemy, who the separatists knew to be listening in. The defendant also asserts that certain other terms have wrongly been regarded by the Public Prosecution Service as veiled terms for a BUK-TELAR. The defence wishes to put this to these witnesses. Interviews with the following persons are requested:

The court is of the opinion that the requests to interview [co-accused 1] are sufficiently in the interest of defendant. The court infers from [co-accused 1]’s statements in the video of the interview he granted [company 2] which was shown in court that [co-accused 1] is willing to submit to questioning. The court grants the request to interview [co-accused 1]. Due to the relevance of his interview, the court will not place limits on the interview topics that may be broached with this witness.

With regard to [witness 47], the court finds that interviewing him is of insufficient interest to the defence, given that [co-accused 1] may be questioned regarding the content of the conversations. This request is therefore rejected.

Like the Public Prosecution Service, the court is of the opinion that insufficient interest can be inferred from the grounds provided for the requests to interview [witness 48], [witness 49] and [witness 50]: the conversation between [witness 48] and [witness 49] might at most concern the alleged removal route, and the link between the alleged offence and the content of the conversation between [witness 48] and [witness 50] is also too tenuous. Those requests are therefore rejected.

In this regard, the defence made a conditional request that an expert on deceptive calls be appointed.97 The defence argues that it is commonly known that telephone conversations are often intercepted in wartime and has requested, should the court have any doubts about this, that an expert be appointed in this regard. Like the Public Prosecution Service, the court is of the opinion that the condition for this request does not apply. Accordingly, no decision need be taken on this request.

Other requests

The defence has requested that [witness 51], [witness 52], [witness 53], S25, [witness 54] and a person whose name has been redacted be interviewed as witnesses.98 The defence wishes to question these witnesses regarding the seizure of the Volvo tractor-trailer on which the BUK-TELAR was allegedly transported, whether that truck had ever previously been rented out to others, including to the Ukrainian army, whether a tank or a BUK had been transported, who issued the order to do so, what information the order contained, exactly what was done, with whom and where, and what was subsequently reported and to whom.

The court finds with regard to the aforementioned witnesses that they have not stated that they were at the alleged launch site, nor have they given any account of the alleged personal involvement of defendant. In the opinion of the court, it is not apparent from the reasoning provided how interviewing these witnesses could reasonably be material to any ruling to be made in the criminal case against defendant. The link between the statements made by these witnesses and the conduct charged is too tenuous. The requests are therefore rejected.

The defence also wishes to question the former Ukrainian soldier.99 The defence would like to ask the witness about a BUK numbered 312 and whether it was in the possession of the Ukrainian army, whether it was transported more than once on a lowboy, and when it was transported on a lowboy. According to the defence, this information is needed to assess the evidentiary value of the videos and photographs of a BUK contained in the prosecution file. The questions raised by the defence are, in the opinion of the court, however, already adequately answered in the file. What is more, the Public Prosecution Service has not disputed that such a BUK was moved around Ukraine, and photographs of that BUK have been used as reference material. For these reasons, the request is moot and is rejected.

The request to question witnesses S24100 and [witness 55] is rejected.101 Like the Public Prosecution Service, the court is of the view that the request is based on an incorrect interpretation of the official record of the interview of S24. While this witness does claim that [witness 55] is one of those who bear responsibility for downing flight MH17, it may be inferred from the rest of that statement, in which identifying data have been redacted, that [witness 55] recruited and mobilised former officers in the Russian Federation for the conflict in Eastern Ukraine and not, as the defence states, that that group was under his command. This request is therefore unfounded and is rejected. For this reason, S24’s statement, which has restricted-access status, will not be placed in the case file either.

The request to interview witness [witness 56] is also rejected.102 This witness stated that [co-accused 1] told him that he ([co-accused 1]) arranged the passage of the BUK on the territory of Donetsk province. He alleges that [co-accused 1] repeated that statement at a later point in time, but also told him that the aircraft had been shot down by a Ukrainian pilot. Given that [co-accused 1] is already to be questioned as a witness, and that this witness makes no mention of defendant being involved, the court deems this request to be of insufficient interest to conducting a proper defence.

The court also notes that in their statements, witnesses G9081 and G9462 provide detailed answers to questions about their expertise and the ideal environmental conditions for positioning Surface-to-Air Missile (SAM) systems and more specifically a TELAR.103 Indeed, the content of their statements is not specifically disputed. The request to interview these witnesses is therefore rejected. The court notes in passing that a request to interview witness G9081 for other reasons was granted by its interlocutory decision of 3 July 2020. Naturally, the defence may, and undoubtedly will, ask questions about the expertise of that witness when he is being interviewed in that connection.

Further, the defence has requested additional information regarding the legitimacy of certain persons assigned a Primo number.104Together with the Public Prosecution Service, the court notes that, in a summarising report and at a previous hearing, the Public Prosecution Service incorrectly identified two persons listed under Primo numbers as being reporting officers. The Public Prosecution Service has explained in this regard that there is an error in the summarising report, and that the Public Prosecution Service repeated that error when responding in court. The court also notes that in the official reports underlying the summarising report in question, the job title of each of these Primos is correctly stated. The court thus notes that the underlying source information regarding these Primos is accurate. There are source documents concerning each person with a Primo number, from which their respective job title and responsibilities can be ascertained. That information is thus available for verification. The court is of the opinion that the fact that a drafting error was made/the prosecutor misspoke in court with respect to two Primos is insufficient justification to call into question the status, with respect to these criminal proceedings, of these persons assigned a Primo number, notably given that the relevant source material is available in the case file. The request therefore lacks concrete justification and is rejected by the court.

Finally, the defence requested that the person who found/indicated the location of the alleged missile tube be interviewed.105 The defence wishes to interview this witness, as he can describe the moment, exact location and circumstances in which he found the aforementioned missile tube. The court infers from the additional questioning of witnesses Primo 17-511 and Primo 17-512 conducted by the examining magistrate that the person who found and the person who indicated the location of the tube are one and the same. Consequently, no decision need be taken on the request to interview the person who indicated its location. The court notes that the records in the case file of the original and follow-up interviews of Primo 17-511, Primo 17-512, Primo 17-496 and Primo 17-495 conducted by the examining magistrate show that the questions which the defence wants to put to the finder have already been asked. It is apparent from the official records of their interviews that the witnesses provided an answer regarding the point in time that the tube was found, and that the answers to the other questions have been redacted. Without anticipating what the finder might state if interviewed as a witness, in the opinion of the court, the aforementioned gives sufficient indication that the answers provided would likewise not be placed in the case file. It is therefore unlikely that interviewing the finder of the tube would yield more information on the aspects raised by the defence than can already be ascertained from the material available regarding the time and place of discovery. Interviewing the finder is therefore futile, and the request is rejected.

Miscellaneous multiple and repeated requests

Finally, the court notes that the defence has made several requests, in different sections of its Memorandum of oral arguments, in some cases with different justifications. They concern interviewing the following witnesses:

Request to provide witnesses’ telecommunications data

The defence requests that witnesses’ telecommunications data be provided to it, so that it can verify, for example, whether based on that data those witnesses were indeed at the place, at the time, that appears in their statement. The request concerns the data of S02, S05, S08, S12, S15, S16, S18, S20, S27, S32, S37, V7, V9, V11, V22, V43, V49, V51, V52, V54, X48, the person who took the photograph of ‘BUK M’ [address], Donetsk, the person who recorded the video of [address], Donetsk, the person who recorded the videos in Zuhres, the person who took the photograph in Torez, the person who took the photograph in Torez, the person who took the photograph in Snizhne, the person who recorded the video in Snizhne, [witness 28], [witness 25], [witness 58], [witness 29], [witness 30], [witness 59], [witness 23], [witness 27] (the alleged driver of the low-loader), NN1 and NN2 (the two men alleged to have been in the cab of the low-loader during removal of the BUK-TELAR), as well as [witness 18]; [witness 60], S36, S13 and the person who took the photographs, S04 , S19, S11, V44, V45, V47 and V51.110

Only part of this request can be considered for granting. The data cannot be provided to the defence, as in many instances it pertains to witnesses whose identity is protected and providing that data could result in their identity being revealed. There is only cause to have the examining magistrate perform this verification, as has already been done with respect to many V witnesses. Such verification is unnecessary when it comes to persons who have not been and will not be interviewed. The request is therefore granted with respect to witnesses who will be interviewed by the examining magistrate and for whom this verification has not yet been carried out. In other words, to check the reliability of witnesses S40, S20 and, if it has not yet been done, V07 and V22 based on telecommunications data. The telecommunications data is to be provided to the examining magistrate only. The request is rejected with respect to the other witnesses.

Requests the court considers redundant

The court considers the following requests from the defence to have become redundant and therefore shall not rule on them:

Did defendant have a role in the offences charged?

As stated above, the court understands that defendant claims that he was not involved in ordering, guarding, concealing or transporting a BUK missile to Pervomaiskyi, instructing its crew, firing a BUK missile or having one fired, and/or downing flight MH17. Defendant and his subordinates did not see a BUK in the area where he and his subordinates were engaged in military activity, nor did defendant observe what happened to flight MH17 on 17 July 2014. He has no direct knowledge of it. He too can only speculate about it§.

Assessment of requests regarding telecommunications and intercepted conversations

The defence submitted several requests regarding telecommunications data and intercepted conversations in June 2020. Those requests for investigation related to geolocating the telephone numbers attributed to defendant, selection of intercepted conversations, recognition of defendant’s voice, translation of intercepted conversations and missing intercepted conversations. The following was requested:

By letter of 11 November 2020, the defence stated that it was maintaining the aforementioned investigation requests. With regard to the investigation requests regarding geolocation by means of transmission mast data, the defence claimed inter alia that the investigation conducted in June 2015 had certain limitations. The defence would like to check the reliability of the work done, as extensive use has been made of the geolocation analysis data in construing the supply and removal route and the launch site, both with respect to defendant and with respect to others. With regard to the selection of intercepted conversations, the defence has argued that having a complete overview of the intercepted conversations is important when it comes to matters such as the chain of command, troop movements, transportation of military vehicles, the presence of ground missiles other than BUK missiles and developments in the conflict on the front line. In addition, it requested conversations of the Ukrainian armed forces that had been intercepted, insofar as they had been secured by the JIT. The defence was of the view that the decision on the request to interview Primo 17-147 regarding the translation of intercepted conversations could be postponed until after witnesses had been questioned regarding what they meant by what they said in the intercepted telephone conversations. In addition to the requests for investigation regarding recognition of defendant’s voice, the defence requested that witness [witness 61] be questioned regarding an intercepted conversation that took place at 19:01:38 hours on 17 July 2014, as well as that a linguistic expert be appointed to determine whether the conversation may have been incorrectly attributed to defendant, edited or distorted.

The Public Prosecution Service has objected to any of these requests being granted.

The court finds as follows. In its interlocutory decision of 3 July 2020, the court postponed its decision on the requests made by the defence regarding telecommunications, as defendant had not yet stated whether or not the telephone numbers attributed to him by the Public Prosecution Service were indeed his; whether he had in fact taken part in the conversations in which the Public Prosecution Service believed he had; and whether, if the telephones were indeed his, he believed their claimed geolocation on 16 and 17 July 2014 to be incorrect. Nor was it clear whether defendant, if he had in fact been one of the speakers in the conversations, was of the view that his statements had been mistranslated or meant something other than what the Public Prosecution Service had assumed, for example in the context of other conversations not included in the case file.

With respect to the intercepted conversations contained in the case file, defendant affirmed in the video statement referred to a number of times above that he was using several mobile telephones in the period around 17 July 2014. Some of those telephones had a secure connection and could not be intercepted. Less important conversations were not conducted on those telephones. One of the telephone numbers used by defendant ended in [number]. Defendant stated that he could always be reached on the telephone with that number. In intercepted conversations, ‘misinformation’ was disseminated to ‘mislead’ the opponent. If something was said about a BUK in the intercepted conversations, it had to be assumed that it was said to mislead the opponent. According to defendant, code words, such as box, toy and pencil, were also used in telephone conversations. A box denoted military equipment, a toy was a portable device, and pencils referred to manpower. Reports of those killed and injured were given using the codes 200 and 300. In the video recording shown in court, six intercepted conversations were played and commented upon by defendant. Defendant explained that in three conversations code words were used and that in two conversations misleading information was given. Defendant stated that he was not a participant in the sixth conversation. Defendant also explained that it was only really enlightening, when one considered everything as a whole, and that to achieve a good overview of matters one had to consider a number of files, one in conjunction with another.

The court notes that has not disputed the reliability of the geolocation conducted based on the historical telecommunications data of the telephones said to be his. Moreover, the geolocation based on the transmission mast data of two telephone numbers attributed to defendant (including the telephone number ending in [number]) on 16 and 17 July 2014 is in line with defendant's statement about where he was on those two days. In addition, since the defence has not substantiated why the reliability of the geolocation analysis with respect to the telephone numbers attributed to persons other than defendant is doubtful, the court sees no interest to the defence in interviewing the reporting officers specified (Primo 17-841, Primo 17-843, Primo17-844 and Primo 17-149).

Nor has disputed that he used the telephone number ending in [number] attributed to him by the Public Prosecution Service. On the contrary, he stated that he used that telephone number constantly both in 2014 and in mid-2015, and that he could always be reached on that number. In mid-September 2020, defendant received from the Public Prosecution Service all audio files of the conversations intercepted in the period between 1 June 2014 and 31 July 2014 involving one of the telephone numbers attributed to him. With respect to only one of those intercepted calls, namely that at 19:01:38 hours on 17 July 2014 does defendant state that he does not recognise himself as a participant. The court notes that the Public Prosecution Service has pointed out that, with respect to its content, the latter intercepted conversation is part of a series of several related intercepted conversations on the same subject. Moreover, defendant's personal case file refers in section 6 (page 53 ff.) to 15 conversations intercepted on 16, 17 and 18 July 2014 which are said to reveal his ‘role in the downing of flight MH17’. Although they are not disputed at all by defendant, with the exception of the intercepted conversation referred to above, the court considers it necessary, and in the interests of efficiency, that additional investigation be done into whether defendant did actually conducted the intercepted conversations attributed to him, since defendant’s involvement in the conduct charged by the Public Prosecution Service appears to be inferred to a significant degree from the content of the 15 intercepted conversations and from the link between defendant and the telephone number (ending in [number]) which he used. The intercepted conversations listed in his personal case file are the following:

The court finds that comparative speech analysis or automatic speaker comparison has not been possible to date for lack of ‘reference material’, but that video footage of defendant is now available for such comparative analysis.

The court does not deem interviewing [witness 61] to be necessary in addition to conducting comparative voice analysis, and therefore rejects this request.

The other requests made by the defence, concerning the selection of intercepted conversations,113 translation of intercepted conversations,114 and missing intercepted conversations115 are rejected for lack of justification.

Request to interview the co-accused

The court grants the request to question co-accused [co-accused 1],116 [co-accused 2]117 and [co-accused 3].118 Defendant is accused of the offences charged, in association with his co-accused. The defence wishes to question the co-accused in this regard. For example, it wishes to ask co-accused [co-accused 2] and [co-accused 1] about conversations and intercepted conversations, including about a BUK, that they are alleged to have had with the defendant. They wish to question co-accused [co-accused 3] about giving defendant instructions regarding a BUK. Since this goes to the heart of the charges against defendant, it is indisputably in the interest of the defence that his co-accused be questioned in this regard. The Public Prosecution Service has adopted the position that the request to interview [co-accused 1] may be granted, but that the requests to question co-accused [co-accused 2] and [co-accused 3] should be rejected as there is no reasonable prospect of them being questioned as witnesses within an acceptable period of time. With regard to co-accused [co-accused 3], the court finds that attempts have been made on several previous occasions to question him or have him questioned as a suspect, and that he has made it be known that he is unwilling to cooperate in these criminal proceedings. That is, however, an insufficient basis for the court to conclude that questioning or having him questioned as a witness will meet with the same difficulties. With regard to co-accused [co-accused 2], as of March efforts to contact him to inform him of these criminal proceedings and to interview him had been unsuccessful, and, to the knowledge of the court, his place of residence or whereabouts are unknown. As the court found earlier with respect to this witness, in this instance it falls to the examining magistrate to ascertain whether there are now any leads as to how co-accused [co-accused 2] might be contacted. If the examining magistrate concludes that it is unlikely that one or more co-accused can be interviewed as a witness within an acceptable period of time, the examining magistrate will write an official report of findings to that effect.

Request to interview witnesses

The court has already granted the request to interview S40 as a witness in a different connection.119 This witness has been interviewed several times and was allegedly in the vicinity of the alleged launch site on 17 July 2014. In his statement, he also refers to a ‘[nickname]’, who was allegedly in Snizhne. Large parts of his statements have been redacted. The defence wishes to ask the witness what S40 can state with respect to defendant. The Public Prosecution Service has pointed out that, from the various passages in S40’s statements and given that the witness has also stated that he did not know what [nickname]'s role was, it is clear that the protected information is not exculpatory with respect to defendant. Nonetheless, it is the view of the court that one cannot speculate as to whether S40 could provide exculpatory, or indeed incriminating, testimony, given that whether and what he previously stated remains unknown. The court cannot rule out, however, that questioning S40 again will result in parts of the statement he gives being redacted to protect his identity.

The defence has requested that the members of the 53rd Brigade, who, according to the case file, allegedly manned the BUK be interviewed concerning defendant’s role.120 The court grants this request, authorising that the commander of the 53rd AAM Brigade (Anti Aircraft Missile Brigade), known as [witness 12], also be interviewed as a witness in this regard. Defendant stands accused, among other things, of providing instructions or means to the BUK crew and in connection with transporting the BUK alleged to have downed flight MH17. To that end, he is claimed to have contacted or have attempted to contact the crew of the alleged BUK or a person associated with them. The court finds that inquiries into these matters are relevant and that the commander of the 53rd Brigade is the most appropriate person to question. As considered earlier, the fact that previous requests to the Russian Federation for mutual legal assistance relating indirectly to the 53rd Brigade have not yielded hard information to date does not necessarily mean that a request to interview the commander of the 53rd Brigade will not bear fruit either. Given that the court has designated the commander of the 53rd brigade as a witness, it rejects the request to interview the other, largely unspecified, members of the brigade and the request to interview [witness 33],121 given, as noted previously, that the court must assume that he is deceased.

The court also grants the request to interview [witness 62].122 According to the case file, defendant is alleged to have been in contact with a telephone number ending in 6335 on 17 July 2014, a number which may have been being used by a member of the crew of the alleged BUK-TELAR. [witness 62] is reported also to have been in contact with that telephone number. [Witness 62] could therefore make a statement about the user of that telephone number. In view of the charges against defendant, gaining insight into possible contact between defendant and the crew of the alleged BUK is relevant. The Public Prosecution Service has stated that, even further to a recent inquiry, [witness 62]'s current whereabouts remain unknown, and that the Ukrainian authorities have had an alert out on him for years. The court notes, perhaps superfluously, if the examining magistrate concludes that it is unlikely that [witness 62] can be interviewed as a witness within an acceptable period of time as he cannot be located, the examining magistrate will write an official report of findings to that effect. The court will not act in anticipation by rejecting this request out of hand.

The court rejects the request to interview [witness 38]. The defence has not properly justified why it believes that this witness could testify regarding the user of the aforementioned telephone number, with which [witness 62] and defendant were allegedly in contact. Indeed, apparently [witness 38] was never in contact with that number himself, rather only with users of similar telephone numbers.

The requests to interview [witness 63] and [witness 64] as witnesses are rejected.123 The defence wishes to question them about the use of misinformation in telephone conversations and, since they mention in an intercepted conversation information being 'simply intercepted', to ask about awareness that telephone conversations were being intercepted. The court agrees with the Public Prosecution Service that it is not contested that parties to a conflict may use misinformation and veiled terms (incidentally or otherwise). There is therefore no need to interview witnesses to confirm this in general. However, that does not prove that such information and language was used in the telephone conversations which allegedly directly relate to the offences with which defendant is charged.

The request to interview [witness 65] is rejected.124 The defence has requested that [witness 65] be questioned about a conversation which he allegedly had with [co-accused 1] at 00:17:09 hours on 17 July 2014, in which they allegedly spoke about ‘a BUK.’ More specifically, the defence wants to ask [witness 65] what was meant when the word BUK was used in that conversation. However, given that it was [co-accused 1] who used that word in the aforementioned conversation, it does not seem logical to ask [witness 65] what the word ‘BUK’ meant in that context. Indeed, only [co-accused 1] can explain what he meant by it. The request is therefore rejected for lack of justification.

The request to interview [witness 66], [witness 38]125 and [witness 67] is rejected.126 The defence argues that they may be in a position to state that a BUK was not mentioned at a briefing allegedly attended by defendant at 10:00 hours on 17 July 2014. Interviewing these witnesses is neither necessary nor of interest to the defence given that the Public Prosecution Service has not asserted that a BUK was mentioned at the aforesaid briefing. The defence also wishes to interview [witness 67] as he may be able to confirm that defendant was occupied with transporting tanks on 17 July 2014. Once again, this is neither necessary nor of interest to the defence. Indeed, the fact that defendant, according to his own statement also, was involved in transporting tanks does not mean that he was or was not also involved in transporting the alleged BUK. This does not provide a basis for interviewing [witness 67] as a witness either. These requests are rejected as insufficiently founded for those reasons.

The request to interview witness S38 is rejected. Witness S38 has been interviewed several times. The examining magistrate authorised the exclusion of these statements from the case file owing to security risks. Questioning S38 again is not expected to yield different results given that the statements have not been partially redacted, as is the case for certain other witnesses, but rather have been excluded in their entirety from the case file.

Requests regarding audio and SMS messages 127

The court rejects the request to provide and add to the case file the audio of a conversation and the text of several text messages allegedly conducted with and received by the telephone number that may have been used by a crew member of the alleged BUK-TELAR. In responding to those requests for investigation, the Public Prosecution Service advised that the aforementioned conversation and text messages were not intercepted and therefore could not be provided or added to the file. The request is therefore rejected as moot.

With regard to defendant’s offer to reply to additional questions put to him in writing

The court takes note of defendant's offer to reply to additional questions from the court arising from his video statements. As to how these questions might be put to defendant, the defence has indicated that, during a meeting with its client, it will present him with written questions so that he can answer them. The court will then be informed of those answers.

The court notes in this regard that, in a criminal investigation, a defendant is usually interviewed by the police and, if he is in pre-trial detention, by the examining magistrate and the judge(s) in chambers. All of those interviews, together with an account of the other investigative work conducted, are part of the prosecution file submitted to the trial judges. During the trial on the merits, the court goes through the prosecution file, including the records of those previous interviews, with the defendant and the contents of the file are discussed. The trial judges therefore interact with the defendant in court and use the documents in the file which they wish to put to the defendant, as a basis to put any questions arising from the file as a whole to him. The aim is to elucidate as far as possible those aspects of the case which the judges must later consider when they deliberate on the charges against the defendant. If an answer given by the defendant raises questions in the light of other documents in the file, the judges may put follow-up questions. With this method of questioning, the defendant becomes familiar with the contents of the file before the court. He also becomes aware of the matters that the trial judges sitting in judgment consider relevant to arriving at their judgment. He in turn has the opportunity to answer the questions and to share his perspective on the file. For the trial judges, this method of questioning ensures that the information gathered as regards the defendant’s input is as complete as possible.

The court has many questions for defendant. These questions stem from the file before the court, but certainly also from what defendant has said in his video statements. The court considers it important to (be able to) put these questions to defendant. Defendant is therefore invited anew to appear in court, in the presence of his counsel and the Public Prosecution Service, and to provide answers in court to any questions which the court, but also the parties to the proceedings, wish to put. This is the usual course of events. In this case too it is the paradigm and the court does not wish to depart from it. The court will therefore not present written questions to defendant.

With respect to counsel’s request that further documents from the case file be provided to it, the court rules as follows. On 23 March 2020, the court determined that, as the criminal proceedings were in the pre-trial phase at that time, there was only cause to provide counsel for the relatives with all the so-called summarising reports and with a number of umbrella reports. In so doing, the court aimed to be liberal in providing access to the case file, thereby providing the defence with a comprehensive overview of the case file. This included the personal case files of the four accused. In this respect, the remark made by the court at the hearing of 12 November 2020, when it suggested providing counsel for the relatives with the personal case files (to which counsel for the relatives already had access) was inapt. The court concludes from the letter and the additional response from counsel for the relatives at the hearing on 13 November 2020 that what matters most is the possibility to obtain specific information about the roles of the individual accused in the period prior to the crash of flight MH17. In that context, the court notes that the comment by counsel for the relatives that it had received only a small portion of the case file, namely between 2,000 and 2,500 pages of the tens of thousands of pages that the entire case file comprises, is correct. However, in terms of the overview that the documents provided convey of the case file as a whole and of the individual roles of the accused, the impression of counsel for the relatives is incorrect, as the documents provided give an almost complete overview of the content, even though the underlying documents, to which those documents continually refer, are not available to counsel for the relatives.

To accommodate the need of counsel for the relatives to take cognizance of more documents in the case file, the court, also given that the pre-trial phase in this criminal case has now been completed, and that since March 2020 a lot of information from the case file has been discussed at the hearings, often in great detail, will now stipulate that counsel for the relatives will have access to one copy of the digital file in the criminal case. The court has reached that decision, in part because the members of counsel for the relatives thereby able to access the file in the criminal case are all lawyers and are performing their duties as such. In the opinion of the court – as has proven to be the case to date – this guarantees in sufficient measure that the case file will not be disseminated further. These documents will therefore be provided subject to the same conditions as the previous provisions and means that members of counsel for the relatives are free to discuss the content of these documents with their clients if they desired but may not provide them with copies in any way. Nor are members of counsel for the relatives allowed to share the content of these documents with anyone other than their clients. The court therefore believes it may also be taken for granted that members of counsel for the relatives will also handle (sections of) identifying data of persons mentioned in the file cautiously and with due care.

The second request in the aforementioned letter of 10 November 2020 is that the court issue an order or instruction with respect to the compensation that the relatives have received from Malaysia Airlines. The court has been informed by counsel for the relatives that a settlement agreement was reached between a large number of relatives and (the insurers of) Malaysia Airlines. The court has also been informed by counsel for the relatives that the settlement agreement contains a provision prohibiting the relatives from disclosing the terms of the settlement agreement to third parties, except ‘insofar as required by order of a competent court or the applicable law’.

A number of relatives are considering submitting a claim and wish, in so doing, to adhere to the court’s instruction, namely that the claim for compensation be drafted in line with the standard ‘Injured Party Claim’ form, which requires that any compensation received from others be stated therein. The relatives wish to be in a position to share certain parts of the aforementioned settlement agreement with the court to substantiate any claims they submit.

The court finds that it cannot usurp the obligations agreed between the parties to the settlement agreement. Nonetheless, the court notes that relatives wishing to join criminal proceedings as injured parties must provide information on the tenor of their claim and the grounds on which it is based, in short, the harm for which compensation is sought, and should state whether the harm has been compensated by others in whole or in part, and in the latter case which part. This obligation derives from the applicable law, i.e. Sections 51f to 51h of the Code of Criminal Procedure and the Decree establishing the compensation claim form for criminal proceedings based thereon.

The court has specified that an injured party is required by law to disclose what harm has already been compensated by third parties. However, it sees no scope for it to issue an order or instruction as requested by counsel for the relatives.

Video compilation of the interview of witness M58

The Public Prosecution Service has once again asked that the examining magistrate have a compilation made of the examining magistrate’s interview of witness M58. The court previously rejected this application, providing its reasons. The Public Prosecution sees the impact that showing such a compilation might have during the trial as an important reason for repeating this request, especially now that, in the view of the Public Prosecution Service, it appears that multiple video-recorded denials by the accused will be shown at that stage of the proceedings. The defence has moved that this request be rejected.

This repeated request by the Public Prosecution Service has not led the court to depart from its decision of 3 July 2020. Aside from the question as to who the intended object of that impact is, achieving an impact at trial by showing such an interview compilation is not required in order to conduct a proper prosecution. Similarly, the fact that defendant may achieve a certain impact by telling his side of the story on video does not cause the court to rule otherwise. It is not unusual for a defendant to testify in court. The court therefore rejects this request anew.

Conditional request to put questions to defendant in writing

The Public Prosecution Service requested to be authorised also to put questions in writing to defendant in the event that the court decided to do so itself. As stated above, the court has decided not to do so and so this request is rejected.

Following on from the pre-trial phase, the next phase will be the trial proper, during which the merits of the case will be heard based on the content of the case file.

With a view to scheduling the next hearings, the court will consult the examining magistrate to ascertain how much time will likely be needed to conduct the investigative work requested and approved. The court requests the examining magistrate to inform it of its progress periodically (once a month).

In the view of the court, there is no need to await completion of the investigative work by the examining magistrate before commencing the hearing on the merits. However, which investigative work is still pending and when the results are expected will be decisive in this regard.

As regards how the court intends to proceed when hearing the merits, it will focus on the three key questions in this case, as it discusses the documents in the case file, i.e. (1) was flight MH17 shot down by a BUK missile; (2) was the BUK missile fired from a farm field near Pervomaiskyi, and (3) did the accused participate in that act in a manner which renders them criminally liable?

The court will address the parties (to the proceedings) by letter, and other means as required, regarding the schedule for this case and how exactly the hearing of the merits in due course will be structured. The court will allow time in the schedule for the Public Prosecution Service and the defence to put forward documents for consideration themselves, in addition to the court-led discussion of the case file. This might be achieved, for example, by the court giving a timely indication of the topics to be discussed and by scheduling surplus days.

The court refers the case of defendant to the examining magistrate tasked with criminal cases at this court to conduct the following investigative work granted in response to requests made by the defence, applications made by the Public Prosecution Service and decided upon ex officio by the court:

1) appoint an expert who will conduct linguistic analysis – comparative speech analysis or automatic speaker comparison – of the voice of the person in the following intercepted conversations, which the Public Prosecution Service asserts is that of defendant:

- 16 July 2014 at 08:47:53 hours

- 16 July 2014 at 15:28:24 hours

- 16 July 2014 at 18:12:49 hours

- 16 July 2014 at 20:11:57 hours

- 17 July 2014 at 09:31:30 hours

- 17 July 2014 at 09:55:20 hours

- 17 July 2014 at 12:42:57 hours

- 17 July 2014 at 12:51:09 hours

- 17 July 2014 at 18:44:37 hours

- 17 July 2014 at 19:01:38 hours

- 17 July 2014 at 19:25:39 hours

- 17 July 2014 at 19:28:00 hours

- 17 July 2014 at 19:52:23 hours

- 17 July 2014 at 21:40:49 hours

- 18 July 2014 at 00:25:26 hours

whereby the video footage of February and October 2020 of defendant may be used as reference material

a. the authors of the TNO reports attached as Appendices 7 and 8 to the Dutch Safety Board report

b. V07

c. V22

d. S20

e. S21

f. [co-accused 2]

g. S40

h. [co-accused 1]

i. the commander (in June/July 2014) of the 53rd AAM Brigade of the Russian Federation, named Colonel [witness 12]

j. the owner/user of the farmland near Pervomaiskyi, identified in the case file as the suspected launch site

k. G2473

l. [co-accused 3]

m. [witness 62]

n. [witness 11] (regarding his observations from the checkpoint near Pervomaiskyi)

3) appoint an interpreter/translator to translate the complete spoken texts in the videos of defendant and [co-accused 1] added to the case file

4) question and possibly interview NFI expert [NFI expert 1], in accordance with the restrictions set out by the court in this decision

5) appoint an expert to carry out technical (digital) analysis into a possibly anomalous shadow on the photograph referred to in Primo-13488. The court suggests that the examining magistrate consider having this investigative work carried out by the same expert (to be appointed by the examining magistrate) who is assigned to look into the possible manipulation of video footage of a BUK-TELAR in Snizhne, as approved above.

The court entrusts the examining magistrate with the documents required to carry out the above assignments and to take whatever steps the examining magistrate deems necessary for the purpose of or in connection therewith. The court expressly rules in this regard that, other than insofar as the court has specifically determined and described the subject matter or the report to be addressed in an interview granted, it places no stipulations on the way, speed and sequence in which the examining magistrate conducts the investigative work granted.

Furthermore, the court entrusts the examining magistrate with the documents required to continue pursuing investigative work already assigned to the examining magistrate in the interlocutory decision of 3 July 2020 and to take whatever steps the examining magistrate deems necessary in that respect.

The court orders the Public Prosecution Service to:

The court grants the application by the Public Prosecution to add the recording shown at the hearing of an interview by [company 2] with (co-accused) [co-accused 1] to the case file.

The court grants the request made by counsel for the relatives to receive additional documents from the case file, in that it will be provided with one copy of the digital case file.

The court suggests that the defence consider being assisted by [witness 2] as a knowledgeable person in assessing the reconstruction of the MH17 aircraft in Gilze-Rijen and, if desired, to submit his findings to the examining magistrate.

Any additional or other requests or applications by the defence, the Public Prosecution Service and counsel for the relatives are hereby rejected.

This interlocutory decision was rendered by

H. Steenhuis, Presiding Judge,

D.A.C. Koster and C.I.H. Kerstens-Fockens, Judges,

in the presence of

J.L.D. Timmermans, M. Sepmeijer-Kovacevic and R.A. Hopman, clerks,

and delivered at the public hearing of this court held on 25 November 2020.